701 F2d 335 Dunagin v. City of Oxford Mississippi

701 F.2d 335

Kathy DUNAGIN, et al., Plaintiffs-Appellants,
The CITY OF OXFORD, MISSISSIPPI, et al., Defendants-Appellees,
The State of Mississippi, Defendant-Intervenor-Appellee.

No. 80-3762.

United States Court of Appeals,
Fifth Circuit.

March 11, 1983.

Holcomb, Dunbar, Connell, Merkel, Tollison & Khayat, Dan W. Webb, Grady F. Tollison, Jr., Guy T. Gillespie, III, Oxford, Miss., for plaintiffs-appellants.

James K. Child, Jr., Henry E. Chatham, Jr., Jackson, Miss., Jack H. Pittman, Hattiesburg, Miss., for amicus curiae Lamar Outdoor Advertising, et al.

F. Edwin Perry, Oxford, Miss., for City of Oxford.

Peter M. Stockett, Jr., Asst. Atty. Gen., William S. Boyd, III, W. Timothy Jones, John E. Milner, Sp. Asst. Attys. Gen., Jackson, Miss., for State of Miss.

Gary W. Gardenhire, Asst. Atty. Gen., Chief, Civ. Div., Oklahoma City, Okl., amicus curiae for State of Okl.

Appeal from the United States District Court for the Northern District of Mississippi.

Before GOLDBERG, GEE and HIGGINBOTHAM, Circuit Judges.


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Appellants brought this class action to challenge the constitutionality of Miss.Code Ann. Sec. 97-31-1 (1972), which bans the advertising of alcoholic beverages in Mississippi. The district court granted summary judgment for the state of Mississippi, declaring the statute to be constitutionally valid, and dismissed appellants' complaint with prejudice. Dunagin v. City of Oxford, 489 F.Supp. 763 (N.D.Miss.1980). Appellants' request for attorneys' fees pursuant to 42 U.S.C. Sec. 1988 (1976) was denied because they were not "prevailing parties."


Because we have decided today that Section 97-31-1 is an unconstitutional infringement of commercial free speech, Lamar Outdoor Advertising, Inc. v. Mississippi State Tax Commission, 701 F.2d 314 (5th Cir.1983), we reverse the judgment of the district court and remand with instructions to enter judgment for appellants on their constitutional claim.* The district court's order denying appellants' request for attorneys' fees is vacated and remanded for reconsideration in light of that judgment.**




The district court granted appellants' motion for summary judgment on the state's counterclaim for abuse of process. That judgment was not appealed and is left undisturbed by our decision


For the reasons stated in the opening footnote in Lamar Outdoor Advertising, Inc. v. Mississippi State Tax Commission, this case also was voted for en banc rehearing, 701 F.2d 366 (5th Cir.1983)